By Gary Bai
NEW YORK—Following the unsealing of the indictment against former President Donald Trump on Tuesday, legal experts say the charges laid out in the indictment are vague, dubious, and lack merit.
“There is no part of the case that is not weak,” Alan Dershowitz, an attorney who taught law at Harvard Law School for nearly 50 years and was part of Trump’s impeachment defense team in 2019, told The Epoch Times in an interview on Wednesday.
Trump was charged with 34 counts of felony-level falsifying business records, Chris Conry, a prosecutor at the office of Manhattan District Attorney Alvin Bragg, revealed during Trump’s arraignment hearing on Tuesday.
Prosecutors allege that Trump directed one of his lawyers, Michael Cohen, during the 2016 presidential election to pay adult film actress Stormy Daniels $130,000 to prevent her from going public about an alleged affair between her and Trump in 2006, which the former president denies.
Court filings allege that Trump then reimbursed Cohen through monthly checks and documented that payment as legal expenses in the Trump Organization, leading to 34 false entries in New York business records.
A felony falsifying records charge requires a prosecutor to prove that it was done with the intent to hide the commission of a second crime.
The indictment and court documents do not specify this second crime. But Bragg, at a Tuesday press conference, mentioned three possibilities: a violation of state election law that bars any conspiracy to promote a candidate “by unlawful means,” a violation of a federal cap on campaign contributions, and a violation of state tax law.
To legal experts, Bragg’s case stands on shaky ground on several fronts.
First, arguing that state law was broken to hide a federal campaign finance law violation is unusual and some say this contention doesn’t hold water. Then, it may be difficult to show that the hush money payment constituted a campaign expenditure—rather than an expense in a personal matter—which is a key element in proving an election law violation.
Bragg’s lack of clarity on what the second crime actually is is also highly problematic, experts said.
There is also the question of whether the case is time-barred given the felony charges carry a statute of limitations of five years, which has since expired. But Bragg is expected to use a provision that says the statute of limitations clock is stopped when “the defendant was continuously outside” of New York, which allegedly applies in the case of Trump.
What’s the Other Crime?
That the court documents didn’t reveal what the second crime the former president is accused of was a major concern to experts.
This issue, according to trial attorney John O’Connor, is the “weakest part of this case.”
“First, no crime was identified in the indictment. Number two, the prosecutor named several possible crimes that could be hidden by the false entry,” O’Connor said. “But that’s an improperly charged crime. You cannot have alternative crimes.”
“In other words, he is saying, ‘Well, there are several that he could have been covering up.’ Well, that’s known as a duplicitous indictment,” he added.
“You cannot say, ‘the defendant committed a crime because of either A, B or C, take your pick,’ because some jurors might find the defendant guilty on A, some on B, someone C, but none of them unanimously.”
The vagueness in the charging documents may also be a breach of Trump’s Constitutional right to due process, according to Mike Davis, founder of Article III Project, a conservative judicial advocacy group, told The Epoch Times.
“Bragg brought the first indictment of a former president and didn’t even allege the legal basis for his invasion,” said Davis, who clerked under U.S. Supreme Court Justice Neil Gorsuch.
“It should be dispositive, meaning under the 14th Amendment to our U.S. Constitution, Americans have the right to due process of law—and due process includes fair notice of the allegations against you so you can defend yourself in court.”
“Alvin Bragg got up in front of the TV cameras yesterday and bragged that he didn’t need to include the legal basis in his indictment,” Davis added. At the Tuesday press conference, Bragg said that “the indictment doesn’t specify [the other crime] because the law does not so require.”
But to Davis, this is “a clear violation of the 14th Amendment to the U.S. Constitution, regardless of what Democrat judges and prosecutors in New York think.”
Is Hush Money a Campaign Contribution?
According to former Chairman of the Federal Elections Commission (FEC) Bradley Smith, the hush money payment to Daniels should not be categorized as a campaign contribution and thus cannot be used to support a campaign finance violation.
Smith said that the prosecution is expected to argue that the purpose of the payment was to influence Trump’s campaign during the 2016 election and therefore should have been documented as campaign expenses, rather than as a legal expense of the Trump Organization.
But there’s a problem with this logic, according to Smith.
This is because federal campaign finance law doesn’t require a candidate’s subjective intent to be taken into account when determining what should be categorized as a campaign expense, he said. Rather, the key question is whether an expense can reasonably be considered to be for a campaign, or just for a personal matter.
Smith considers that the hush money payment to Daniels falls in the latter category.
“For example … if you decide you’re going to run for office, and you paid a divorce attorney to try to seal up your messy divorce records … you might do that [for the purpose] that you’re running for office—but that’s not legally considered for the purpose of running for office. That’s not a campaign expenditure,” he said.
“And not only are you not required to pay with campaign funds—it is actually illegal to pay it with campaign funds,” the former FEC commissioner added.
“You don’t really have the conspiracy to cover up another crime. You just have a conspiracy to cover up an embarrassing situation.”
A Similar Case Failed
John Malcolm, vice president of the Institute for Constitutional Government at the Heritage Foundation, a conservative think tank, highlighted that federal prosecutors previously dropped a similar case.
John Edwards, a former North Carolina senator and former vice-presidential candidate, was charged by the Department of Justice with federal campaign finance violations relating to payments made by two wealthy donors to support living expenses for his mistress, who had given birth to their child.
Malcolm said that Edwards’s argument was: “These were payments by very wealthy personal friends of mine, and they were paying this not because I was running for whatever office I was running for. They paid this because I wanted to hide this information from my wife, who was suffering from cancer at the time.”
Edwards’s case went to trial, and he was acquitted on one of the charges. The jury couldn’t reach a verdict on the remaining five charges, and the Department of Justice dropped the case.
That same defense could be applied to Trump’s case, according to Malcolm.
“What [Trump] could say is … I didn’t want to embarrass my family. So, I paid them not to tell their story. I would have paid these women whether I was running for president or not,” he said.
“So, if he can establish that, one, he thought these were legal services, or two, that he paid these funds out of personal funds, and he would have made these payments regardless of whether he was running for office, then these are not illegal campaign contributions.”
‘Never in the History of America’
Dershowitz pointed to what he described as a “deep fallacy” underlying the indictment.
The implication of treating hush money payments, which are not themselves illegal, as a campaign expenditure is that it would lead to a catch-22 situation: Reporting the payment as a campaign expense would mean it would be made public, thus nullifying the very purpose of the payment, which was to keep information secret.
“It’s based on the following assumption: for Trump not to have been prosecuted after legally paying hush money, he had to put on publicly-available forms the very fact that he paid money to keep secret, namely, the fact that he was accused of having an adulterous affair with a former porn star,” Dershowitz said.
“Never in the history of America has anybody ever been prosecuted for not disclosing the reason they gave for paying hush money,” he added
“So the entire indictment is based on a deep fallacy. There’s nothing strong about it. You can’t create strength with multiple weaknesses.
“There are 34 bad counts, and 34 bad counts do not create a single good count.”
Dershowitz also took issue with the alleged election law violation.
“These are the kinds of crimes that people … if they’re convicted… they usually get a $25 fine or something like that,” he said.
But Bragg in pursuing this case has thrown an immense amount of resources for a relatively minor alleged offense, according to Dershowitz.
“The idea of interfering with the presidential election, and spending hundreds of thousands [or] millions of dollars on security, to bring a former and potentially future president into court. It’s just such a misallocation of resources,” he said.
‘Endangers the Rule of Law’
Dershowitz described Bragg’s prosecution of Trump as politically motivated, considering that Trump will be likely running against President Joe Biden in 2024 and that it is the “weakest case” he has seen in his six decades of experience practicing criminal law.
“It’s very dangerous—it means that district attorneys can indict their own political enemies,” Dershowitz said in an interview last week, noting that he predicted this outcome in his book, “Get Trump,” which describes a two-tiered system of justice, singling out Trump.
“It really endangers the rule of law for all Americans: today, it’s Trump; tomorrow, it’s a Democrat; the day after tomorrow, it’s your uncle Charlie, or your niece, or your nephew,” Dershowitz added.
“In 60 years of practice, this is the worst case of prosecutorial abuse I have ever seen,” the scholar said. “What’s really unprecedented is not the indictment of a past president, but the indictment of a potential future president who was running against the head of the party of the man who indicted him.”